Article — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
Article II. On the Principle or Author of Censures
- Principles. - I. The Church enjoys true power to impose censures. This is proved from Sacred Scripture. For Christ handed over to His Church the power of casting out from her bosom delinquent and contumacious children by those words in Matthew 18:17: If he will not hear the Church, let him be to you as a heathen and a publican. Amen I say to you: whatsoever you shall bind upon earth shall be bound also in heaven. But this power includes the faculty of imposing censures, as is clear to all. It is established, moreover, from the universal and perpetual practice of the Church, and also from innumerable Councils, especially from the Council of Trent, session 25, chapter 3, On Reformation.
II. By ordinary right, all and only ecclesiastical Superiors having jurisdiction in the external and contentious forum can impose censures. This is apparent from the cited words of Christ in Matthew: Whatsoever you shall bind, etc. For by these words Christ gave to the Prelates of the Church, in the person of the Apostles, all power for the good and right administration of the Church. It is also established from several places in Canon Law.
III. By delegated power, all and only clerics to whom it has been granted by a Superior having ordinary jurisdiction can impose censures. The reason is that every cleric, and only a cleric, is capable of the ecclesiastical jurisdiction required for imposing censures. - See St. Alphonsus, no. 9 and following.
- Rules. - 1. By ordinary right, the Pope and a General Council can impose censures with respect to the universal Church; Archbishops, both in their own dioceses and in the dioceses of their Suffragans during visitation, and also when there is question of a cause brought before their tribunal, because then they possess jurisdiction over the Suffragans; Bishops with respect to their own diocese, provided that they have been elected and confirmed, even if not consecrated 1; Vicars General of Bishops 2, for they constitute one tribunal with the Bishops themselves; Legates in the territory of the legation, and Cardinals in the church of their own title; provincial Councils in their provinces; Generals, Provincials, and local Superiors of religious Orders according to their various statutes; the Chapter of a cathedral church while the see is vacant and before the election of the capitular Vicar, who thereafter will enjoy such power exclusively. - St. Alphonsus, ibid.
1 See St. Alphonsus (book 7, no. 10) and chapter Transmissum 15, On Election. Compare also Gonzalez on this chapter.
2 St. Alphonsus (book 7, no. 10) adduces Sayrus, Ugolinus, and others in Croix (book 7, no. 24) as dissenting. But this is a mere error either of Croix or of another from whom Croix copied. For the cited Doctors deviate in nothing from the common opinion.
- Pastors cannot by ordinary right 3 impose censures, because they do not have jurisdiction in the external and judicial forum, but only administration for the right order of the parish. - St. Thomas, On IV Sentences, distinction 18, question 3, article 3.
3 The Author adds, by ordinary right, because it has seemed to some that pastors once exercised this right. But the texts of the law from which they draw this demonstrate nothing of the kind. See Schmalzgrueber (book 5, title 39, no. 20).
- Laymen and women cannot impose censures even by delegation 4. Hence Abbesses of nuns cannot impose them by their own authority, but can only obtain a decree by which their mandates must be observed under penalty of censure. - St. Alphonsus, no. 12.
4 The Doctors nevertheless agree that the incapacity of a layman is only of ecclesiastical law. See St. Alphonsus (book 7, no. 12) and Schmalzgrueber (book 5, title 39, no. 3). Therefore, the Supreme Pontiff can delegate this power to a layman, just as he can dispense so that a layman may be assumed by a Bishop as Vicar.
With respect to women, St. Alphonsus (book 7, no. 12), after the Salmanticenses (On Censures, chapter 1, no. 48), judged it more probable that incapacity for jurisdiction is of divine law. Others, on the contrary, think it more probable that it is of merely human law, and therefore that the Pontiff, from the plenitude of power, can delegate to them the faculty of imposing censures. Besides others whom the Salmanticenses cite (loc. cit., no. 47), this opinion is held by Sayrus, Suarez, Laymann, Palaus, Pirhing, and Croix in Schmalzgrueber (book 5, title 39, no. 16), who adheres to them.
** It is scarcely apparent why the VV. thought they should linger over this controversy (pages 867-868). Since Father B., they say, touched this question as merely speculative, we also shall touch it briefly. But the reason why Father B. subjoined this Note is sufficiently manifest. Father Gury had written concerning this matter as though it were clearly and indubitably established. Therefore, it was not beside the point that the genuine state of the question should be indicated. For otherwise have they themselves added anything which either brings some greater light to this question or counsels that the judgment rendered concerning it in the Note should be reformed? Finally, they bring forward three things.
1. To the five Authors whom the Salmanticenses report for the opinion more acceptable to St. Alphonsus, the VV. add the Salmanticenses themselves and three others, among whom is Concina. You would say, namely, that they feared the small number of those Authors compared with the seven cited for the opposite opinion among the Salmanticenses, to whom another four were added in the Note. But in writing the Note there was in reality no concern for this matter. And if there had been some solicitude about it, indeed several are found in Dicastillo (On Censures, disputation 1, nos. 126-128) and Diana (volume 3, tract 1, resolution 75; otherwise, part 8, tract 4, resolution 39), among whom Cardinal de Lugo is also numbered, by whom this number could easily have been more than doubled.
2. The VV. then bring forward certain words of St. Thomas from his Commentary on book 8 of the Ethics, chapter 7. - But perhaps with too little deliberation. For there it is read: But some use of the keys is committed to a woman, as to have correction over subject women. Soto (On IV Sentences, disputation 20, question 1, article 4) adds to these words the following others from the same St. Thomas (On IV Sentences, distinction 25, question 2, article 1, reply to objection 1): Nevertheless, concerning Abbesses it is said that they do not have ordinary prelacy (Soto reads, jurisdiction), but as though by commission. From these texts others deduce a conclusion contrary to what the VV. judge.
3. Finally, the VV. transcribe the text of Suarez (On Censures, disputation 2, section 3, no. 7) in this manner: I add, moreover, that it is one thing to speak of the, so to say, absolute power of the Supreme Pontiff, and another of the ordinary ecclesiastical law. For in the former manner perhaps it is not repugnant for the Supreme Pontiff to grant this power (of imposing censures) to some woman, which Paludanus holds, and Soto, Navarre, and Ugolinus do not dissent. For this is not contrary to divine law; and therefore there is nothing why the Pontiff, from absolute power,
cannot do this, just as he can also grant this jurisdiction to a layman. For what purpose these things are brought forward here by the VV. can scarcely be understood. For the question touched in the Note is whether the incapacity of a woman for this office is of divine law or only of positive law. Therefore, since Suarez says most clearly, there is nothing why the Pontiff, from absolute power, cannot do this, just as he can also grant this jurisdiction to a layman, he manifestly contradicts St. Alphonsus, who contends that it is more probable that this incapacity of a woman is of divine law. And indeed the final words of Suarez are most worthy of notice: Just as the Pontiff can also grant this jurisdiction to a layman. For, as Dicastillo writes (loc. cit., no. 152), Concerning laymen lacking every Order and even tonsure, the common opinion of the Doctors is that they are not by divine law incapable of this jurisdiction of the external forum. Moreover, for another reason it was of interest to the VV. to omit this text of Suarez. For since Suarez also testifies that Soto does not dissent from this opinion, it follows that Soto is not rightly cited by St. Alphonsus for his own opinion.
- Delegated power ceases with the death of the one delegating 5, unless the cause has already been begun by the delegate, at least through citation. But one delegated to impose censures cannot subdelegate another 6, unless he has express permission from the one delegating, or unless at least he has been delegated for any causes whatever.
5 Because, namely, there is question of a cause of justice; for otherwise it must be said in causes of grace.
6 Except delegates of the Roman Pontiff, from chapter Si pro debilitate 5, On the Office of a Delegate. But concerning what is required by ordinary law in order that someone can be delegated, see Schmalzgrueber (book 5, title 39, no. 14).
- Questions. - QUESTION 1. Can heretical, excommunicated, and suspended Bishops validly impose censures?
Reply 1. Affirmatively, if they are occult heretics, excommunicated persons, or suspended persons. The reason is that the Church, for the common good, does not take away from them the use of jurisdiction. Nevertheless, they act illicitly whenever they impose censures. - Thus commonly the Theologians with St. Alphonsus, no. 12.
Reply 2. Negatively, if they are excommunicated persons to be avoided, or not tolerated, because then they are deprived of all ecclesiastical jurisdiction. But what if they are indeed notorious, but not persons to be avoided? It appears that they can nevertheless validly impose censures, because, they say, this is gathered from the Constitution Ad evitanda of Martin V, where it is enacted that an excommunicated person who is tolerated is not to be avoided, in those things which pertain to public office, even by those who know it. - See St. Alphonsus, ibid.
- QUESTION 2. Can a Bishop impose a censure if he is outside the diocese?
Reply 1. Affirmatively, if the censure is imposed by way of precept or statute for preventing future crimes. - St. Alphonsus, book 7, no. 21.
Reply 2. Affirmatively, even if the censure is imposed by way of a sentence which nevertheless does not require cognizance of the cause and judicial proceedings; or even if it requires judicial proceedings, provided permission has been granted by the Ordinary of the territory.
Reply 3. Negatively, if the censure must be imposed with judicial proceedings and the Ordinary of the place refuses permission. Except if the Bishop was expelled by force from his own territory; for then it suffices that permission was sought from the Ordinary of the place, although it was not obtained. - See Schmalzgrueber, book 5, title 39, no. 26.
QUESTION 3. Conversely, can a Bishop existing in his own diocese impose a censure upon a subject existing outside the diocese?
Reply 1. Affirmatively, if there is question of a crime committed in his own diocese. The reason is that otherwise the delinquent could be punished by no one; and although he has departed, he nevertheless does not cease to be subject to the jurisdiction of his own Bishop. Nor is it an objection that the citation cannot be made outside the territory; for it suffices for incurring the censure that the guilty party be cited at his own home or in a public place. - St. Alphonsus, no. 22.
Reply 2. Indeed, a Bishop can impose a censure upon a subject sinning outside the diocese if there is question of a matter pertaining to his diocese. Thus clerics who, when commanded to come to the Synod, do not obey can be excommunicated; otherwise, however, at least more probably, if the crime were consummated outside the territory 7. Except if there is question of a censure imposed against someone by way of a special precept for preventing a crime, as St. Alphonsus more probably teaches, book 7, no. 23, and Laymann confirms with valid reasons, book 1, tract 5, part 1, chapter 4, no. 7. - St. Alphonsus, ibid.; Suarez; Salmanticenses.
7 Since laws affect a territory, and therefore one who dwells outside it is not bound by the laws of his homeland, consequently one who sins outside the territory is not subjected to censures imposed by general statutes. This is plainly confirmed from chapter Ut animarum 2, On Constitutions, in the Sext. And since an exempt place, although situated within the boundaries of the diocese, is compared in this respect with places situated outside the territory, therefore, as the common doctrine holds, one sinning in an exempt place does not incur diocesan censures. See Laymann (book 1, tract 5, chapter 4, no. 6) and Schmalzgrueber (book 5, title 39, no. 49).
- QUESTION 4. Can a Bishop bind by censure another's subject sinning in his diocese?
Reply. Affirmatively. The reason is that every delinquent acquires the forum of the place in which he sins. Thus from Canon Law, book 2, title 2, On the Competent Forum, chapter 3. Although a Bishop more probably cannot impose a censure upon a stranger before admonition, he can nevertheless do so after the latter has sinned in the place and the Bishop has cited him 8. - St. Alphonsus, no. 26, and book 6, no. 591.
8 These things, as is apparent, are said of censures ab homine through a sentence. For if there is question of censures inflicted by a special law of that place upon those sinning either against the common law or against the proper laws of that place, according to the more common opinion, which exempts strangers and travelers from the obligation of observing the proper laws of those places, they do not incur them. But you would wrongly urge with certain persons (see St. Alphonsus, book 1, no. 156, doubt 2, and book 3, no. 332, section An autem) any probability whatever of the opposite opinion, namely, of the opinion which subjects travelers to the aforesaid laws. For probability is not sufficient for imposing an obligation, and much less for undergoing penalties. See Lugo, Moral Responses, book 6, doubt 22, nos. 3-5.
But the cases in which a traveler acquires a forum by reason of the offense and can be punished by censures may be seen in the same de Lugo (loc. cit., no. 6) and Suarez (On Censures, disputation 5, section 5, nos. 12, 13).
** The VV. here oppose twelve full columns (pages 868-874), something which could scarcely appear credible to one inspecting the character of this little Note. But perhaps the reader will be all the more astonished when he sees that with so great a mass they fight almost nothing but mere shadows.
1. For first, as though an opinion obliging strangers to observe the laws of a place where they remain briefly and precariously were fastened upon the Holy Doctor Alphonsus in the Note, behold the VV., after reporting his texts both from book 7, nos. 26 and 27, and from the places indicated in our little Note, seriously conclude (page 871): St. Alphonsus does not generally urge for foreigners the obligation of obeying the special laws of a place unless ... they have contracted there a quasi-domicile.
Reply. I deny the supposition. Indeed, for this very reason, within that parenthesis in the little Note, the reader is sent to read St. Alphonsus, book 1, no. 156, and book 3, no. 332: because there the Holy Doctor defends the more common opinion which exempts strangers and travelers from the obligation of observing the proper laws of those places; from which thesis, as from a foundation, it is deduced in the little Note that those strangers do not incur the censures of which it speaks. Wherefore, entirely without cause, the VV. afterward repeat in the same place: Therefore neither the Holy Doctor nor another with him WRONGLY URGES OBLIGATIONS! As though those words of the little Note, But you would wrongly urge with certain persons the probability of the OPPOSITE opinion, were referred to St. Alphonsus, when they are manifestly referred to the opposite thesis which the Holy Doctor rejects in the cited places. And, what may appear amusing, the VV. immediately add in the same place: But rather Father Ballerini wrongly confuses the questions!
2. But from the same preconceived opinion, that those words of the little Note, But you would wrongly urge with certain persons, etc., attack the opinion of the Holy Doctor, the VV. in the same place thus assail the following part of that little Note: As regards that principle recalled again here by Father Ballerini, namely, that any probability whatever does not suffice for imposing an obligation ..., it appears clearer than light that the aforesaid principle is false whenever, AS IN THE PRESENT QUESTION, it is extended to a probability NOTABLY AND CERTAINLY GREATER than the opposite.
Reply. Again, first, I deny the supposition; because in the little Note this is said most plainly of whatever probability may be attributed to the opposite opinion of Suarez or others, which binds strangers to the laws of the place and consequently subjects them to the proper censures of the same place. This opinion is rejected elsewhere in the Notes to this compendium (see Note at no. 94, volume 1, page 87), and there it is again insisted against it that the mere probability of this opinion does not suffice for inducing an obligation. But this is by no means asserted against the more common and more probable opinion exempting strangers from this obligation, which St. Alphonsus also defends; and for this reason St. Alphonsus is cited in Gury's text (book 6, no. 591), where the Holy Doctor writes: Foreigners are not subject to these censures unless they have contracted a domicile or quasi-domicile in the place where they were imposed; and he had premised the reason there: because excommunication cannot be imposed except upon subjects and the contumacious.
3. But, moreover, a certain excessive fervor for contradicting and attacking caused the VV. here to contradict St. Alphonsus also. Let us resume their statements: The principle recalled here by Father B., namely, that any probability whatever does not suffice for imposing an obligation, is false whenever, AS IN THE PRESENT QUESTION, it is extended to a probability NOTABLY AND CERTAINLY greater than the opposite.
Let us even prescind from the confusion which these words of the VV. introduce. But what finally is this notably and certainly greater probability? If you consider the purpose of the VV. refuting the little Note, you will certainly conclude that they designate the probability to which the force of inducing an obligation is denied in the little Note; for on that account this principle is insisted upon in the little Note. But this is none other than the probability of the opinion which subjects strangers to the laws and censures of the place. Therefore, according to the VV., does the opinion which obliges strangers to the laws and censures of a place have a probability notably and certainly greater than the opposite? Yet, apart from the fact that this would be asserted against the more common opinion of the Doctors, the VV. would thus now attack St. Alphonsus, who holds as more probable the opinion exempting strangers from the aforesaid laws and censures. It remains, therefore, that by those words the VV. designate not the opinion which obliges strangers, but the more common opinion, as it is called in the little Note, which exempts strangers and travelers from the obligation of observing the proper laws of those places. For they expressly say that this notably and certainly greater probability is so present IN THE PRESENT QUESTION that it excludes the principle employed here by Father Ballerini. Therefore, it is necessary that they attribute this greater probability to one or the other opinion, namely, either to that obliging strangers, as we said, or to that exempting them from this obligation. But they neither attribute it, nor can attribute it, to the obliging opinion, as we have seen, without attacking both St. Alphonsus and the more common opinion of the Doctors. Therefore, it remains that they contend that this greater probability pertains to the opinion which exempts strangers from the obligation in question.
4. But thus the VV. do not attack Father Ballerini, and, on the contrary, again attack the Holy Doctor Alphonsus. They do not attack Father Ballerini, I say; for what is contended in the little Note they themselves strikingly confirm when they assert that the opinion which in the case exempts strangers from observing the laws of a foreign territory, and therefore from incurring the proper censures of that territory, is notably and certainly more probable; and, on the contrary, they concede scarcely any probability to the opposite opinion which binds the same strangers to the aforesaid laws and censures.
5. But thus the VV. again attack the Holy Doctor Alphonsus. For they contend that the opinion in question is both notably and certainly more probable. Yet, as the illustrious Father Haringer, a distinguished theologian of the Congregation of the Most Holy Redeemer, testifies (in the Note to no. 40 of the Treatise on Conscience of St. Alphonsus), A notably more probable opinion approaches very closely to moral certitude, and is no longer strictly doubtful, but morally or quasi-morally certain, and THE OPPOSITE BECOMES SLIGHTLY PROBABLE; or, as St. Alphonsus says (loc. cit., no. 56), the opposite remains EITHER SLIGHTLY OR AT LEAST DOUBTFULLY PROBABLE. Therefore, while the VV. proclaim that the opinion exempting strangers, etc., is certainly and notably more probable, they consequently contend that the opposite, which binds strangers to those laws and censures, is slightly or at least doubtfully probable. Yet this is precisely what again openly conflicts with the opinion of St. Alphonsus. For even the VV. themselves (page 870) cite the text of St. Alphonsus from book 1, no. 156, in which the Holy Doctor admits that this opinion is sufficiently probable. For he writes thus: This opinion, which obliges strangers, IS SUFFICIENTLY PROBABLE; but the second, which says that a stranger is not bound by the laws of the place, etc., APPEARS more probable. There, moreover, we see the Holy Doctor asserting the greater probability of the latter opinion somewhat doubtfully, appears, whereas, on the contrary, the VV. proclaim it notably and certainly more probable and therefore morally or quasi-morally certain. But again the VV. themselves (page 869) transcribe another text of the Holy Doctor, from book 3, no. 338, where that same opinion is furthermore called by St. Alphonsus deservedly probable. Thus the Holy Doctor: Suarez, Pontius, Joseph de Januario, and Salas in Palaus affirm, namely, that strangers are bound, etc., WHO DESERVEDLY CALLS IT PROBABLE with Sanchez and the Salmanticenses.... Sanchez with Toledo, Azor, etc., nevertheless more probably deny it. Therefore, while the VV. will that what St. Alphonsus teaches to be both sufficiently probable, which the Holy Doctor again has both in book 7, no. 27, and in The Apostolic Man, tract 2, no. 41, and deservedly probable should be held as slightly or doubtfully probable, it is manifestly apparent that they also attack the doctrine of St. Alphonsus.
6. Moreover, another argument that the VV. here pursue shadows is found where they write (page 871): But the more common opinion does not exempt from the obligation of observing local laws all strangers, as FATHER BALLERINI SUPPOSES, but only those who do not have the intention of remaining for the greater part of the year.
Reply. From where the VV. could have taken occasion to imagine that, according to Father B., those also are exempted from this obligation who have the intention of acquiring a quasi-domicile through that long stay, who can finally divine? Indeed, in the text of Gury, to which the little Note is subjoined, there is question of another's subject, who is there rightly called a traveler; but the nature of the matter itself demands that the discussion in the Note be about exactly the same subject. Why, therefore, do the VV. contend that the same word traveler has in the little Note so broad a sense, which is otherwise contrary to common usage? Has Father B. at least elsewhere attributed to this word so broad, unusual, and improper a sense that it embraces also those who, while contracting a quasi-domicile, now become subjects? Therefore, here also the VV. pursue shadows. Let us come to another head.
7. The VV. write (page 873): We do not understand how the things which Suarez teaches here can be reconciled with the assertions of Father Ballerini.
Reply. Suarez (On Censures, disputation 5, section 5, no. 12) is cited in the little Note in order to indicate the case in which a traveler acquires a forum by reason of an offense and can be punished with censures. For Suarez thus proposes in no. 12 the case which he resolves in no. 13: The objection stands thus: If a stranger commits an offense in another's territory, by that offense he also becomes so subject that proceedings can be taken against him where he sinned; and nevertheless, even if a censure is imposed by sentence in that territory on account of that offense, he does not incur it, although such a sentence embraces all subjects. But to these things he answers there thus in no. 13: Since two things can be considered in a statute or jurisdiction, namely, directive force and coercive force, by reason of an offense a man cannot become subject first and immediately in relation to directive force, but in relation to coercive or punitive force; for he is said to become subject because he can justly be punished where he sinned. Consequently, however, he can be obliged according to directive force to all those things to which a just judge can oblige a guilty party, but not to other things, precisely by force of that subjection. But from this it follows that, if this guilty party is obstinate and contumacious against such a just mandate of the judge, namely, of the Bishop, he can also be compelled by him through censures. And indeed, suppose, for example, that what is intimated in chapter Si seduxerit 1, On Adultery and Defilement, happens, in which the guilty party is condemned either to marry the seduced virgin or to provide a dowry for her. The Bishop can certainly cite the guilty party by reason of the offense, although he is a stranger and nevertheless made a subject, and, when he has been convicted, condemn him to the aforesaid penalties. Behold, therefore, the case concerning which Suarez treats, namely, when the judge can compel a stranger, even by censures, both to appear before him or obey the citation and consequently either to pay the dowry or to marry the young woman, as St. Alphonsus also intimates (book 7, no. 26, at the end).
8. But to the texts of Suarez with which the VV. fill four columns (pages 872, 873), the obvious response is at hand: all those things do not pertain to the matter. Namely, the context of that section 5 looks to whether one acting in another diocese contrary to the general sentence of his own Prelate is bound by his censure; and Suarez (no. 14), according to his own opinion, which he nevertheless does not deny elsewhere to be merely probable, that local laws oblige not only subjects but also travelers, answers affirmatively. But the citation of Suarez in the little Note did not look to this, but to those things which the same author incidentally has in nos. 12 and 13 concerning a censure which is ab homine, and which we reported above. And to the same point pertain those things also which Suarez had likewise incidentally said in the same section 5, for example, no. 10: An offense alone can make one a subject in relation to a future judgment and consequently with respect to all those things which can be ordained to the punishment of that offense. And again, no. 11: Although an offense committed in a territory constitutes a man a delinquent of that forum, and, the forum being supposed, he can be cited and become contumacious. Therefore, the VV. have that by which they may understand how those things which Suarez has in that section 5 can be reconciled with the assertions of Father Ballerini.
9. Moreover, perhaps with more useful labor the VV. would have inquired how what St. Alphonsus has in this same question (book 7, no. 27) is reconciled with the doctrines of Suarez, where he writes: If a censure is imposed by way of a general statute for future offenses ..., then it binds even foreigners if they are there with the intention of remaining for the greater part of the year; otherwise, if they remain there in passing. Thus the Salmanticenses with SUAREZ, etc. After these things the Holy Doctor then continues: This opinion is more probable to me, but I do not think it improbable that travelers are bound by the censure both in the first and in the second case, even if they are somewhere for a brief time, because it is sufficiently probable that travelers become subjects if they remain in some place even for a brief time, according to the opinion reported in book 3, no. 332.
In this place, as is apparent, Suarez is cited by the Holy Doctor for the opinion which he calls more probable to himself, namely, that travelers are not bound by the censure because, if they remain somewhere for a brief time, they do not become subjects. Yet the same Holy Doctor writes thus in the place to which he refers, namely, book 3, no. 332: Are travelers bound to hear Mass which must be heard from a particular precept of the place where they are, even if they remain there for one day? SUAREZ affirms (On Religion, book 1, chapter 14, no. 9), Pontius, etc. Sanchez, etc., nevertheless more probably deny it. But let us now omit the erroneous citation of Suarez, which recurs in the Holy Doctor also in book 1, no. 156, namely, On Religion, book 1, chapter 14, no. 9; for it labors under a twofold defect, both because Suarez's On Religion has ten treatises, each of which has several books, and because that opinion is found in none of the first ten books but is found in tract 2, book 2, chapter 14, no. 8. But what is principal: how is Suarez cited by St. Alphonsus in book 7, no. 27, for the more probable opinion which exempts travelers who remain somewhere for a brief time from observing laws and incurring local censures, and then in book 3, no. 332, the same Suarez is cited for the opinion which subjects travelers to a local precept even if they remain there for one day?
10. But there is also another thing which requires an explanation from the VV. in the same no. 27 of book 7. For the Holy Doctor, as we have seen, writes there: I do not think it improbable that travelers are bound by the censure both in the FIRST and in the SECOND case, even if they are somewhere for a brief time, because it is sufficiently probable that travelers become subjects if they remain in some place even for a brief time, according to the opinion reported in no. 332. But the first case there is this: If a censure is imposed by way of a particular precept or sentence in a particular case, namely, if excommunication is imposed against those who do not reveal thieves, this does not bind foreigners because a particular precept cannot bind non-subjects. Therefore, St. Alphonsus does not judge it improbable that even the aforesaid excommunication is incurred by strangers because, as he says, it is sufficiently probable that travelers become subjects according to the things reported in book 3, no. 332. Yet Suarez, whom otherwise the Holy Doctor cites here in the first place and whose numerous texts the VV. report, on the contrary absolutely denies that an excommunication of this kind is incurred by foreigners. For thus Suarez says (On Censures, disputation 5, section 5, no. 10), as the VV. themselves report: A sentence of this kind, although general, is directly imposed upon persons in order to restrain and punish their contumacy; and therefore it is not extended to strangers, who, although they remain in another's territory, are simply not subjects there, nor does there intervene any title by which they become subjects. He then gives the reason for this resolution in the same place, no. 15.
11. Likewise the VV. report (page 868) those things which St. Alphonsus has in book 7, no. 26, and they are of this kind: For this reason Croix, book 7, no. 32, thinks, against the Salmanticenses, chapter 1, no. 37, with Pignatelli and Gibalinus, who cites a Declaration of the Sacred Congregation, that a Bishop can excommunicate even his Archbishop sinning in the Bishop's diocese. But the reason premised by St. Alphonsus is that by reason of the offense that Archbishop becomes a subject of the Bishop. Yet: 1. It is not true that the Salmanticenses are of the opposite opinion. For, indeed, when the Salmanticenses establish in the cited place, no. 37, that a non-subject can be excommunicated by a Bishop by reason of an offense committed in his territory, they except: unless such a guilty party was his Superior, as his Archbishop or Patriarch; but afterward, no. 39, they add the limitation: if he does this by his own authority. Concerning which below: We said in the conclusion, by his own authority, because an equal or inferior can indeed by delegation of another Superior excommunicate his own Superior. 2. On the contrary, the doctrine of St. Alphonsus, which is taken from Croix, is expressed in words too general, namely, that an Archbishop can become subject to his Suffragan by reason of an offense; for it must be restricted by those limits which Gibalinus skillfully adds (On Censures, disquisition 4, question 1, no. 4), namely, that this happens only when the Superior has sinned within another's diocese against a law sanctioned BY SOME OTHER SUPERIOR OF BOTH and promulgated in the jurisdiction of that inferior; for example, if laws concerning the administration of some orphanage, hospital, or University were so sanctioned by the Pontiff that it pertained to the Bishop to restrain disturbers even through censures. 3. In the text of St. Alphonsus, a Declaration of the Sacred Congregation ascribed to Gibalinus is adduced for this doctrine; but this is not true, nor did Croix say this, for Pignatelli, not Gibalinus, adduces it, and Croix attributes it to Pignatelli. Moreover, Pignatelli (Consultations, volume 1, consultation 170, no. 8), contrary to what St. Alphonsus after La Croix intimates, in no way speaks of an Archbishop who can be excommunicated by his Suffragan, but merely has these words: Thus also a Bishop offending the jurisdiction of another Bishop in the latter's diocese is made a subject, so that proceedings can be taken against him with censures, as the Sacred Congregation of the Council judged after Alterius ... in a certain case of Bari on 27 February 1627. These things fit our case less well, when a Bishop against his own Metropolitan or Patriarch not so much defends his own jurisdiction as protects, as delegate, a law of the Pontiff coercing even through censures.
12. Finally, I would not omit here a little Note which the VV. incidentally add (page 872), where they write: We observe here in passing that the texts of St. Antoninus, St. Raymond, Gerson, and Gabriel Biel which Father Ballerini adduces in the Annotation to no. 152, volume 1, to prove that mortal sin is not to be asserted unless it is certainly established, must be received with a grain of salt, as they say. For a twofold certitude can be had, one direct and the other indirect from reflex or concomitant principles (compare above, On the System, page 103, at II); in which place there is discussion of that certitude which arises for that side for which a certainly more probable opinion stands.
Reply. Of what kind this grain of salt should be with which, according to the VV., the opinions of the aforesaid Doctors are to be sprinkled, someone will perhaps divine with difficulty. Indeed, according to the things cited above, no. 6, from the illustrious Father Haringer, A certainly more probable opinion approaches very closely to moral certitude, and is no longer strictly doubtful, but morally or quasi-morally certain. Therefore, is this the grain of salt which the VV. require: that those opinions of the Doctors are to be understood such that mortal sin is not to be asserted unless it is established as morally or quasi-morally certain? Yet, unless I am wholly deceived, it did not seem necessary for this grain of salt to be supplied by the VV. For in moral matters the certitude which is admitted and received is ordinarily none other than an assent of mind of such a kind as excludes a prudent fear of erring. Indeed, according to certain passages of St. Alphonsus, this grain of salt can appear altogether superfluous. And indeed, let the things which the Holy Doctor writes in book 6, no. 604, concerning a Confessor having an opinion diverse from the opinion of the penitent be weighed, please. That the penitent, he says, wills to follow this or that opinion is irrelevant to the judgment of the Confessor unless the latter judges the opinion of the penitent TO BE EVIDENTLY FALSE. And again in the same place: When, on the one hand, the penitent forms for himself a judgment concerning the uprightness of some action, and otherwise the Confessor does not have EVIDENT CERTITUDE concerning its falsity, he is bound to absolve him. And again in the same place: But whenever the opinion of the Confessor IS NOT EVIDENTLY CERTAIN ..., then he not only can but is also bound to absolve the penitent. Moreover, let these things be compared with those which the same Holy Doctor writes in the Moral System, no. 84. For there he reports these words of Cabassut: Every Confessor ought to absolve that penitent who does not wish to abstain from a work which, according to probable authority, is licit, although according to the probable authority of others which the Confessor himself follows it is held as LESS probable; moreover, to these final words of Cabassut the Holy Doctor adds within parentheses: It must be understood, NOT NOTABLY LESS. Therefore, the Holy Doctor manifestly had previously called evidently false that which he here calls notably less probable. And this is confirmed from those things which we read thus in the edition of the year 1757 (book 1, tract 1, no. 25): But what Busembaum says, that the Confessor ought to absolve the penitent even if he judges his opinion false, must be understood unless he judges it ALTOGETHER FALSE.
Therefore, according to St. Alphonsus, notably less probable is equivalent to ALTOGETHER FALSE; and therefore, conversely, notably or certainly more probable is equivalent to evidently certain or altogether true. Nor is it permissible to think that St. Alphonsus, when he absolutely determines the same question, although in diverse places, would so openly cohere less with himself. Therefore, what the VV. observe, that the statement of the Doctors that mortal sin is not to be asserted unless it is certainly established must be received with a grain of salt, that is, must be understood also when mortal sin is certainly more probably established, can deservedly appear altogether empty; since certainly more probable, according to the interpretation of St. Alphonsus and the illustrious Father Haringer, finally means the same as morally certain, indeed evidently certain.
Moreover, it would be more helpful to observe this here: it is indeed opportune that the VV., as readers of the moral works of the Holy Doctor Alphonsus, warn what sense certain forms of speaking have or can have in the same Holy Doctor; but perhaps it is not likewise opportune that they contend that those forms of speaking are now to be received in the schools after the manner of a general norm, when that manner of speaking is found to be singular and proper to St. Alphonsus rather than generally common among the Doctors. An opinion MUCH, VERY, NOTABLY (add CERTAINLY) more probable, says the illustrious Father Haringer in explaining St. Alphonsus, approaches very closely to moral certitude and is no longer strictly doubtful, but morally or quasi-morally certain. Let us not now inquire whether the same sense constantly underlies these forms of speaking even in St. Alphonsus. But since the Doctors generally did not propose this form of speaking to themselves, the use of these hermeneutical canons for reading the Works of St. Alphonsus will perhaps be useful; but for one examining the Works of the Doctors who through the long succession of centuries adorned the Church and the schools with their labors, it will perhaps lead to distorted and erroneous interpretations.
QUESTION 5. Can Regular Prelates impose a censure upon subjects existing in any place whatever?
Reply. Affirmatively, according to the common opinion. The reason is that the jurisdiction of Superiors is not merely territorial but rather personal; hence a change of place on the part of the subject detracts nothing from the jurisdiction of the Superior. - Thus St. Alphonsus, no. 20.
These things, however, must be understood of censures imposed by a particular sentence or by statutes of the Chapter or of the Superior General. For if some censure has been imposed by a statute by a Superior who has a special territory, for example, a province, then the limitation of place can be attended to, and therefore the exemption of those who sin outside that territory. See Croix, book 7, no. 28.